AN ACT to amend and reenact §11-15A-1 of the Code of West Virginia,
1931, as amended, relating to expanding the definition of a
“retailer engaging in business in this state” for purposes of
sales and use taxes to include any retailer that is related
to, or part of a unitary business with, a person, entity or
business that is a subsidiary of the retailer, or is related
to, or unitary with, the retailer as a related entity, a
related member or part of a unitary business that meets one of
four certain additional criteria; providing illustrative
examples of the term “service” for purposes of the expanded
definition; and providing effective date for the change of
definition.

Be it enacted by the Legislature of West Virginia:

That §11-15A-1 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:

ARTICLE 15A. USE TAX.

§11-15A-1. Definitions.

(a) General. -– When used in this article and article fifteen
of this chapter, terms defined in subsection (b) of this section
have the meanings ascribed to them in this section, except in those
instances where a different meaning is provided in this article or
the context in which the word is used clearly indicates that a
different meaning is intended by the Legislature:

(b)(1) “Business” means any activity engaged in by any person,
or caused to be engaged in by any person, with the object of direct
or indirect economic gain, benefit or advantage, and includes any
purposeful revenue generating activity in this state;

(2) “Consumer” means any person purchasing tangible personal
property, custom software or a taxable service from a retailer as
defined in paragraph (7) of this subsection or from a seller as
defined in section two, article fifteen-b of this chapter;

(3) “Lease” includes rental, hire and license;

(4) “Person” includes any individual, firm, partnership, joint
venture, joint stock company, association, public or private
corporation, limited liability company, limited liability
partnership, cooperative, estate, trust, business trust, receiver,
executor, administrator, any other fiduciary, any representative
appointed by order of any court or otherwise acting on behalf of
others, or any other group or combination acting as a unit, and the
plural as well as the singular number;

(5) “Purchase” means any transfer, exchange or barter,
conditional or otherwise, in any manner or by any means whatsoever,
for a consideration;

(6) “Purchase price” means the measure subject to the tax
imposed by this article and has the same meaning as sales price;

(7) “Retailer” means and includes every person engaging in the
business of selling, leasing or renting tangible personal property
or custom software or furnishing a taxable service for use within
the meaning of this article, or in the business of selling, at
auction, tangible personal property or custom software owned by the
person or others for use in this state: Provided, That when in the
opinion of the Tax Commissioner it is necessary for the efficient
administration of this article to regard any salespersons,
representatives, truckers, peddlers or canvassers as the agents of
the dealers, distributors, supervisors, employees or persons under
whom they operate or from whom they obtain the tangible personal
property sold by them, irrespective of whether they are making
sales on their own behalf or on behalf of the dealers,
distributors, supervisors, employers or persons, the Tax
Commissioner may so regard them and may regard the dealers,
distributors, supervisors, employers, or persons as retailers for
purposes of this article;

(8) “Retailer engaging in business in this state” or any like
term, unless otherwise limited by federal statute, means and
includes, but is not limited to:

(A) Any retailer having or maintaining, occupying or using,
within this state, directly or by a subsidiary, an office,
distribution house, sales house, warehouse, or other place of
business, or any agent (by whatever name called) operating within
this state under the authority of the retailer or its subsidiary,
irrespective of whether the place of business or agent is located
here permanently or temporarily, or whether the retailer or
subsidiary is admitted to do business within this state pursuant to
article fifteen, chapter thirty-one-d of this code or article
fourteen, chapter thirty-one-e of this code; or

(B) On and after January 1, 2014, any retailer that is related
to, or part of a unitary business with, a person, entity or
business that, without regard to whether the retailer is admitted
to do business in this state pursuant to article fifteen, chapter
thirty-one-d of this code or article fourteen, chapter thirty-one-e
of this code, is a subsidiary of the retailer, or is related to, or
unitary with, the retailer as a related entity, a related member or
part of a unitary business, all as defined in article twenty four,
section three-a of this chapter;

(i) That, pursuant to an agreement with or in cooperation with
the related retailer, maintains an office, distribution house,
sales house, warehouse or other place of business in this state;

(ii) That performs services in this state in connection with
tangible personal property or services sold by the retailer, or any
related entity, related member or part of the unitary business;

(iii) That, by any agent, or representative (by whatever name
called), or employee, performs services in this state in connection
with tangible personal property or services sold by the retailer,
or any related entity, related member or part of the unitary
business; or

(iv) That directly, or through or by an agent, representative
or employee located in, or present in, this state, solicits
business in this state for or on behalf of the retailer, or any
related entity, related member or part of the unitary business.

(C) For purposes of paragraph (B) of this subdivision, the
term “service” means and includes, but is not limited to, customer
support services, help desk services, call center services, repair
services, engineering services, installation service, assembly
service, delivery service by means other than common carrier or the
United States Postal Service, technical assistance services, the
service of investigating, handling or otherwise assisting in
resolving customer issues or complaints while in this state, the
service of operating a mail order business or telephone, Internet
or other remote order business from facilities located within this
state, the service of operating a website or Internet-based
business from a location within the state, or any other service.

(9) “Sale” means any transaction resulting in the purchase or
lease of tangible personal property, custom software or a taxable
service from a retailer;

(10) “Seller” means a retailer, and includes every person
selling or leasing tangible personal property or custom software or
furnishing a taxable service in a transaction that is subject to
the tax imposed by this article;

(11) “Streamlined sales and use tax agreement” or “agreement,”
when used in this article, has the same meaning as when used in
article fifteen-b of this chapter, except when the context in which
the word agreement is used clearly indicates that a different
meaning is intended by the Legislature;

(12) “Tangible personal property” means personal property that
can be seen, weighed, measured, felt, or touched, or that is in any
manner perceptible to the senses. “Tangible personal property”
includes, but is not limited to, electricity, water, gas, and
prewritten computer software;

(13) “Tax commissioner” or “commissioner” means the State Tax
Commissioner, or his or her delegate. The term “delegate” in the
phrase “or his or her delegate,” when used in reference to the Tax
Commissioner, means any officer or employee of the State Tax
Division duly authorized by the Tax Commissioner directly, or
indirectly by one or more redelegations of authority, to perform
the functions mentioned or described in this article or rules
promulgated for this article;

(14) “Taxpayer” includes any person within the meaning of this
section, who is subject to a tax imposed by this article, whether
acting for himself or herself or as a fiduciary; and

(15) “Use” means and includes:

(A) The exercise by any person of any right or power over
tangible personal property or custom software incident to the
ownership, possession or enjoyment of the property, or by any
transaction in which possession of or the exercise of any right or
power over tangible personal property, custom software or the
result of a taxable service is acquired for a consideration,
including any lease, rental or conditional sale of tangible
personal property or custom software; or

(B) The use or enjoyment in this state of the result of a
taxable service. As used in this subdivision, “enjoyment” includes
a purchaser’s right to direct the disposition of the property or
the use of the taxable service, whether or not the purchaser has
possession of the property.

The term “use” does not include the keeping, retaining or
exercising any right or power over tangible personal property,
custom software or the result of a taxable service for the purpose
of subsequently transporting it outside the state for use
thereafter solely outside this state.

(c) Additional definitions. -– Other terms used in this
article are defined in articles fifteen and fifteen-b of this
chapter, which definitions are incorporated by reference into
article fifteen-a. Additionally, other sections of this article
may define terms primarily used in the section in which the term is
defined.